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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
STATE OF NORTH CAROLINA
v. Halifax County
Nos. 02 CRS 56460, 57979
DONTE A. PEEBLES
Appeal by defendant from judgment entered 8 May 2006 by Judge
J. Richard Parker in Halifax County Superior Court. Heard in the
Court of Appeals 20 August 2007.
Roy Cooper, Attorney General, by Christopher H. Wilson,
Assistant Attorney General, for the State.
William D. Spence for defendant-appellant.
MARTIN, Chief Judge.
Donte A. Peebles (defendant) appeals from an order revoking
his 24-month probation and activating his 180-day suspended prison
sentence for the willful violation of certain probationary
conditions. We affirm the trial court's order.
The evidence presented at the probation revocation hearing
tended to show that defendant pled guilty to and was convicted on
13 April 2005 of four instances of writing a worthless check and
one charge of driving while license revoked (DWLR). Defendant
was sentenced to a 60-day prison term for the worthless check
convictions and a 120-day prison term for the DWLR, to be served
consecutively. In lieu of imprisonment, the trial court suspended
the original sentence for a 24-month probationary period. On 5 February 2006, defendant's probation officer filed a
violation report for each conviction, alleging that defendant
willfully violated several probationary conditions. The reports
alleged that defendant failed to attend required appointments with
his probation officer on 1 June 2005, 9 August 2005, and 6
September 2005, in violation of the probationary condition that
defendant [r]eport as directed by the [c]ourt or the probation
officer to the officer at reasonable times and places. The report
also alleged that defendant had a total of over $300 in arrears
between his two restitution payments as well as his monthly
probation supervision fees, in violation of the condition that he
pay both restitution and supervision fees monthly to the court.
Finally, the report alleged that defendant had been convicted of
assault on a female, violating the probation condition that the
defendant [c]ommit no criminal offense. Defendant was served
with a copy of the violation report and noticed to appear in
Halifax County Superior Court for a probation revocation hearing on
8 May 2006.
At the hearing, the trial court explained to defendant that he
was charged with violating the conditions of his probation and that
the hearing could lead to imprisonment for the term of his
originally suspended sentence. The court also advised defendant
that he had the right to be represented by an attorney, as well as
the right to represent himself. When asked what defendant intended
to do for representation, he claimed that he did not need an
attorney. The court again asked if defendant was going torepresent himself, to which defendant responded affirmatively and
signed a written waiver of his right to counsel. The hearing then
proceeded with defendant representing himself pro se.
During the proceedings, defendant admitted to willfully
committing each of the alleged violations, but argued that he had
a lawful excuse for his noncompliance. First, defendant contended
that while he did commit an assault on his wife, the two were
currently on good terms and had a strong marriage. He also
asserted that his failure to pay in accordance with the court's
order was not willful because of his financial obligations to his
family. Finally, defendant argued that he failed to attend
meetings with his probation officer because of work, but that he
had rescheduled the missed appointments. The trial court found
that defendant had willfully violated the terms of probation and
activated the suspended sentence.
Defendant first argues that the trial court failed to conduct
a sufficient inquiry as to whether defendant knowingly,
intelligently, and voluntarily waived his right to counsel in
violation of N.C.G.S. § 15A-1242(2). Defendant raises a question
of law, which we review de novo. In re Appeal of The Greens of
Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319
(2003) (Questions of law receive de novo review . . . .); see,
e.g., State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 804-05
(1986) (conducting de novo review of the trial court's compliance
with N.C.G.S. § 15A-1242); State v. Evans, 153 N.C. App. 313, 316,569 S.E.2d 673, 675 (2002) (reviewing de novo the trial court's
compliance with the requirements of N.C.G.S. § 15A-1242).
A defendant can lawfully waive representation only when the
court has determined that the defendant clearly and unequivocally
expressed his desire to waive the right to counsel and that the
decision was made knowingly, intelligently, and voluntarily.
Evans, 153 N.C. App. at 315, 569 S.E.2d at 675 (quoting State v.
Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994)). To
sufficiently inquire into whether a defendant knowingly,
intelligently, and voluntarily waived his right to counsel, a court
must meet all three requirements of N.C.G.S. § 15A-1242. Id. The
A defendant may be permitted at his
election to proceed in the trial of his case
without the assistance of counsel only after
the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his right
to the assistance of counsel, including his
right to the assignment of counsel when he is
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the charges
and proceedings and the range of permissible
N.C. Gen. Stat. § 15A-1242 (2005). Because the trial court
complied with the dictates of this statute in allowing defendant to
waive his right to counsel, the trial court did not err by allowing
the defendant to proceed pro se.
In accordance with § 15A-1242, defendant was informed of his
right to counsel, the consequences of a waiver of that right, and
the nature of the charges and the possible punishments. At thehearing, the trial court explained to defendant that he was charged
with violating his probation and that the hearing could lead to
imprisonment for the term of his original sentencing. In doing so,
the trial court clarified the nature of the charges and
proceedings and the range of permissible punishments, pursuant to
N.C.G.S. § 15A-1242(3). The trial court also informed defendant
that waiving his right to counsel meant he would be representing
himself. This indicates that the trial court made an inquiry
consistent with § 15A-1242(2) by establishing that defendant
understood and appreciated the consequences of his waiver.
Finally, the court explained that defendant had a right to legal
representation or that defendant could represent himself, which
satisfies § 15A-1242(1). We conclude the trial court properly
determined that defendant made his waiver knowingly, intelligently,
and voluntarily. Therefore, defendant's assignment of error is
Defendant next argues that the trial court abused its
discretion by revoking probation and activating his original
sentence. All that is required to revoke probation is evidence
satisfying the trial court in its discretion that the defendant
violated a valid condition of probation without lawful excuse.
State v. Tozzi
, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
In order to prove an abuse of discretion, defendant must show that
the trial court's ruling was so arbitrary that it could not have
been the result of a reasoned decision. State v. Syriani
, 333N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied
, 510 U.S. 948, 114
S. Ct. 392, 126 L. Ed. 2d 341 (1993).
In the present case, the State alleged that defendant violated
his probation by (1) committing assault, (2) failing to pay
restitution and court fees, and (3) failing to meet with his
probation officer for three scheduled appointments. Although
defendant admitted to willfully violating each condition, he argues
that the violations were lawfully excused. At the hearing and in
his brief to this Court, defendant claimed that (1) although he was
convicted for assault, he and the victim were presently on good
terms and there was a possibility of the assault conviction being
appealed, (2) he failed to pay restitution and supervision fees
because of his financial obligation to his family, and (3) he
missed probation appointments because of his conflicting work
While defendant claims a lawful excuse for each violation,
[t]he breach of any single valid condition upon which the sentence
was suspended will support an order activating the sentence.
State v. Braswell
, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973).
If defendant offered evidence tending to prove a lawful excuse for
the violation, the trial judge has a duty to make findings of fact
that clearly show that defendant's evidence was considered and
evaluated. State v. Sellars
, 61 N.C. App. 558, 561, 301 S.E.2d
105, 107 (1983). If the trial judge properly considered and
evaluated defendant's evidence of just one of the alleged lawfulexcuses and found a violation, then activation of the original
sentence is within the court's discretion.
The current status of defendant's relationship with his victim
is wholly irrelevant to the issue of whether defendant violated his
probation by committing a criminal offense. The present
relationship between an assailant and victim does not negate the
fact that an assault was committed. Moreover, probation may be
revoked for a probationer's commission of a crime, notwithstanding
the pendency of an appeal of the conviction. State v. Ginn
N.C. App. 363, 379-80, 296 S.E.2d 825, 835-36, disc. review denied
307 N.C. 271, 299 S.E.2d 217 (1982).
Defendant also contends that his failure to pay restitution
and supervision fees was not willful because his daughters were in
school, he had bills to pay, and he had an obligation to
financially support his family. Defendant offered no other
evidence to support his excuse.
In State v. Jones
, this Court held that the mere assertion of
unemployment, without further evidence to support his inability to
pay the judgment, was not a sufficient lawful excuse and that the
trial court properly revoked probation in the absence of sufficient
evidence to establish a lawful excuse. State v. Jones
, 78 N.C.
App. 507, 510, 337 S.E.2d 195, 197 (1985). In the present case,
other than the mere assertion of financial obligations to his
family, defendant presented no other evidence to support his claim
to a lawful excuse. Either of the violations discussed above is sufficient to
affirm the trial court's decision because the violation of any
single condition of probation will support revoking probation and
activating a suspended sentence. State v. Braswell
, 283 N.C. 332,
337, 196 S.E.2d 185, 188 (1973). There was no abuse of discretion
because the trial court properly evaluated and considered the
defendant's claims of lawful excuse. The trial court's decision to
revoke probation and activate defendant's suspended sentence is
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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